by emotion, are hurried before the clergyman or the civil registrar of
marriages, to bind themselves together for life, knowing nothing of the
world and scarcely more of each other, knowing nothing also of the
marriage laws, not even perhaps so much as that there are any marriage
laws, never realizing that--as has been truly said--from the place they
are entering beneath a garland of flowers there is, on this side of death,
no exit except through the trapdoor of a sewer.[358]

When a woman marries she gives up the right to her own person.
Thus, according to the law of England, a man "cannot be guilty of
a rape upon his lawful wife." Stephen, who, in the first edition
of his _Digest of Criminal Law_, thought that under some
circumstances a man might be indicted for rape upon his wife, in
the last edition withdrew that opinion. A man may rape a
prostitute, but he cannot rape his wife. Having once given her
consent to sexual intercourse by the act of marrying a man, she
has given it forever, whatever new circumstances may arise, and
he has no need to ask her consent to sexual intercourse, not even
if he is knowingly suffering at the time from a venereal disease
(see, e.g., an article on "Sex Bias," _Westminster Review_,
March, 1888).

The duty of the wife to allow "conjugal rights" to her husband is
another aspect of her legal subjection to him. Even in the
nineteenth century a Suffolk lady of good family was imprisoned
in Ipswich Goal for many years and fed on bread and water, though
suffering from various diseases, till she died, simply because
she continued to disregard the decree requiring her to render
conjugal rights to her husband. This state of things was partly
reformed by the Matrimonial Causes Bill of 1884, and that bill
was passed, not to protect women, but men, against punishment for
refusal to restore conjugal rights. Undoubtedly, the modern
tendency, although it has progressed very slowly, is against
applying compulsion to either husband or wife to yield "conjugal
rights;" and since the Jackson case it is not possible in England
for a husband to use force in attempting to compel his wife to
live with him. This tendency is still more marked in the United
States; thus the Iowa Supreme Court, a few years ago, decided
that excessive demands for coitus constituted cruelty of a degree
justifying divorce (J.G. Kiernan, _Alienist and Neurologist_,
Nov. 1906, p. 466).

The slender tenure of the wife over her person is not confined to
the sexual sphere, but even extends to her right to life. In
England, if a wife kills her husband, it was formerly the very
serious offence of "petit treason," and it is still murder. But,
if a husband kills his wife and is able to plead her adultery and
his jealousy, it is only manslaughter. (In France, where jealousy
is regarded with extreme indulgence, even a wife who kills her
husband is often acquitted.)

It must not, however, be supposed that all the legal inequalities
involved by marriage are in favor of the husband. A large number
of injustices are also inflicted on the husband. The husband, for
instance, is legally responsible for the libels uttered by his
wife, and he is equally responsible civilly for the frauds she
commits, even if she is living apart from him. (This was, for
instance, held by an English judge in 1908; "he could only say he
regretted it, for it seems a hard case. But it was the law.")
Belfort Bax has, in recent years, especially insisted on the
hardships inflicted by English law in such ways as these. There
can be no doubt that marriage, as at present constituted,
inflicts serious wrongs on the husband as well as on the wife.

Marriage is, therefore, not only not a contract in the true sense,[359]
but in the only sense in which it is a contract it is a contract of an
exceedingly bad kind. When the Canonists superseded the old conception of
marriage as a contract of purchase by their sacramental marriage, they
were in many respects effecting a real progress, and the return to the
idea of a contract, as soon as its temporary value as a protest has
ceased, proves altogether out of harmony with any advanced stage of
civilization. It was revived in days before the revolt against slavery had
been inaugurated. Personal contracts are out of harmony with our modern
civilization and our ideas of individual liberty. A man can no longer
contract himself as a slave nor sell his wife. Yet marriage, regarded as a
contract, is of precisely the same class as those transactions.[360] In
every high stage of civilization this fact is clearly recognized, and
young couples are not even allowed to contract themselves out in marriage
unconditionally. We see this, for instance, in the wise legislation of the
Romans. Even under the Christian Emperors that sound principle was
maintained and the lawyer Paulus wrote:[361] "Marriage was so free,
according to ancient opinion, that even agreements between the parties not
to separate from one another could have no validity." In so far as the
essence and not any accidental circumstance of the marital relationships
is made a contract, it is a contract of a nature which the two parties
concerned are not competent to make. Biologically and psychologically it
cannot be valid, and with the growth of a humane civilization it is
explicitly declared to be legally invalid.

For, there can be no doubt about it, the intimate and essential fact of
marriage--the relationship of sexual intercourse--is not and cannot be a
contract. It is not a contract but a fact; it cannot be effected by any
mere act of will on the part of the parties concerned; it cannot be
maintained by any mere act of will. To will such a contract is merely to
perform a worse than indecorous farce. Certainly many of the circumstances
of marriage are properly the subject of contract, to be voluntarily and
deliberately made by the parties to the contract. But the essential fact
of marriage--a love strong enough to render the most intimate of
relationships possible and desirable through an indefinite number of
years--cannot be made a matter for contract. Alike from the physical point
of view, and the psychical point of view, no binding contract--and a
contract is worthless if it is not binding--can possibly be made. And the
making of such pseudo-contracts concerning the future of a marriage,
before it has even been ascertained that the marriage can ever become a
fact at all, is not only impossible but absurd.

It is of course true that this impossibility, this absurdity, are never
visible to the contracting parties. They have applied to the question all
the very restricted tests that are conventionally permitted to them, and
the satisfactory results of these tests, together with the consciousness
of possessing an immense and apparently inexhaustible fund of loving
emotion, seem to them adequate to the fulfilment of the contract
throughout life, if not indeed eternity.

As a child of seven I chanced to be in a semi-tropical island of the
Pacific supplied with fruit, especially grapes, from the mainland, and a
dusky market woman always presented a large bunch of grapes to the little
English stranger. But a day came when the proffered bunch was firmly
refused; the superabundance of grapes had produced a reaction of disgust.
A space of nearly forty years was needed to overcome the repugnance to
grapes thus acquired. Yet there can be no doubt that if at the age of six
that little boy had been asked to sign a contract binding him to accept
grapes every day, to keep them always near him, to eat them and to enjoy
them every day, he would have signed that contract as joyously as any
radiant bridegroom or demure bride signs the register in the vestry. But
is a complex man or woman, with unknown capacities for changing or
deteriorating, and with incalculable aptitudes for inflicting torture and
arousing loathing, is such a creature more easy to be bound to than an
exquisite fruit? All the countries of the world in which the subtle
influence of the Canon law of Christendom still makes itself felt, have
not yet grasped a general truth which is well within the practical
experience of a child of seven.[362]

The notion that such a relationship as that of marriage can rest
on so fragile a basis as a pre-ordained contract has naturally
never prevailed widely in its extreme form, and has been unknown
altogether in many parts of the world. The Romans, as we know,
explicitly rejected it, and even at a comparatively early period
recognized the legality of marriage by _usus_, thus declaring in
effect that marriage must be a fact, and not a mere undertaking.
There has been a widespread legal tendency, especially where the
traditions of Roman law have retained any influence, to regard
the cohabitation of marriage as the essential fact of the
relationship. It was an old rule even under the Catholic Church
that marriage may be presumed from cohabitation (see, e.g.,
Zacchia, _Questionum Medico-legalium Opus_, edition of 1688, vol.
iii, p. 234). Even in England cohabitation is already one of the
presumptions in favor of the existence of marriage (though not
necessarily by itself regarded as sufficient), provided the woman
is of unblemished character, and does not appear to be a common
prostitute (Nevill Geary, _The Law of Marriage_, Ch. III). If,
however, according to Lord Watson's judicial statement in the
Dysart Peerage case, a man takes his mistress to a hotel or goes
with her to a baby-linen shop and speaks of her as his wife, it
is to be presumed that he is acting for the sake of decency, and
this furnishes no evidence of marriage. In Scotland the
presumption of marriage arises on much slighter grounds than in
England. This may be connected with the ancient and deep-rooted
custom in Scotland of marriage by exchange of consent (Geary, op.
cit. Ch. XVIII; cf., Howard, _Matrimonial Institutions_, vol. i,
p. 316).

In the Bredalbane case (Campbell _v._ Campbell, 1867), which was
of great importance because it involved the succession to the
vast estates of the Marquis of Bredalbane, the House of Lords
decided than even an adulterous connection may, on ceasing to be
adulterous, become matrimonial by the simple consent of the
parties, as evidenced by habit and repute, without any need for
the matrimonial character of the connection to be indicated by
any public act, nor any necessity to prove the specific period
when the consent was interchanged. This decision has been
confirmed in the Dysart case (Geary, loc. cit.; cf. C.G.
Garrison, "Limits of Divorce," _Contemporary Review_, Feb.,
1894). Similarly, as decided by Justice Kekewich in the Wagstaff
case in 1907, if a man leaves money to his "widow," on condition
that she never marries again, although he has never been married
to her, and though she has been legally married to another man,
the testator's intentions must be upheld. Garrison, in his
valuable discussion of this aspect of legal marriage (_loc.
cit._), forcibly insists that by English law marriage is a fact
and not a contract, and that where "conduct characterized by
connubial purpose and constancy" exists, there marriage legally
exists, marriage being simply "a name for an existing fact."

In the United States, marriage "by habit and repute" similarly
exists, and in some States has even been confirmed and extended
by statute (J.P. Bishop, _Commentaries_, vol. i, Ch. XV).
"Whatever the form of the ceremony, and even if all ceremony was
dispensed with," said Judge Cooley, of Michigan, in 1875 (in an
opinion accepted as authoritative by the Federal courts), "if the
parties agreed presently to take each other for husband and wife,
and from that time lived together professedly in that relation,
proof of these facts would be sufficient.... This has been the
settled doctrine of the American courts." (Howard, op. cit., vol.
iii, pp. 177 et seq. Twenty-three States sanction common-law
marriage, while eighteen repudiate, or are inclined to repudiate,
any informal agreement.)

This legal recognition by the highest judicial authorities, alike
in Great Britain and the United States, that marriage is
essentially a fact, and that no evidence of any form or ceremony
of marriage is required for the most complete legal recognition
of marriage, undoubtedly carries with it highly important
implications. It became clear that the reform of marriage is
possible even without change in the law, and that honorable
sexual relationships, even when entered into without any legal
forms, are already entitled to full legal recognition and
protection. There are, however, it need scarcely be added here,
other considerations which render reform along these lines
incomplete.

It thus tends to come about that with the growth of civilization the
conception of marriage as a contract falls more and more into discredit.
It is realized, on the one hand, that personal contracts are out of
harmony with our general and social attitude, for if we reject the idea of
a human being contracting himself as a slave, how much more we should
reject the idea of entering by contract into the still more intimate
relationship of a husband or a wife; on the other hand it is felt that the
idea of pre-ordained contracts on a matter over which the individual
himself has no control is quite unreal and when any strict rules of equity
prevail, necessarily invalid. It is true that we still constantly find
writers sententiously asserting their notions of the duties or the
privileges involved by the "contract" of marriage, with no more attempt to
analyze the meaning of the term "contract" in this connection than the
Protestant Reformers made, but it can scarcely be said that these writers
have yet reached the alphabet of the subject they dogmatize about.

The transference of marriage from the Church to the State which, in the
lands where it first occurred, we owe to Protestantism and, in the
English-speaking lands, especially to Puritanism, while a necessary stage,
had the unfortunate result of secularizing the sexual relationships. That
is to say, it ignored the transcendent element in love which is really the
essential part of such relationships, and it concentrated attention on
those formal and accidental parts of marriage which can alone be dealt
with in a rigid and precise manner, and can alone properly form the
subject of contracts. The Canon law, fantastic and impossible as it became
in many of its developments, at least insisted on the natural and actual
fact of marriage as, above all, a bodily union, while, at the same time,
it regarded that union as no mere secular business contract but a sacred
and exalted function, a divine fact, and the symbol of the most divine
fact in the world. We are returning to-day to the Canonist's conception of
marriage on a higher and freer plane, bringing back the exalted conception
of the Canon law, yet retaining the individualism which the Puritan
wrongly thought he could secure on the basis of mere secularization,
while, further, we recognize that the whole process belongs to the private
sphere of moral responsibility. As Hobhouse has well said, in tracing the
evolutionary history of the modern conception of marriage, the sacramental
idea of marriage has again emerged but on a higher plane; "from being a
sacrament in the magical, it has become one in the ethical, sense." We are
thus tending towards, though we have not yet legally achieved, marriage
made and maintained by consent, "a union between two free and responsible
persons in which the equal rights of both are maintained."[363]

It is supposed by some that to look upon sexual union as a
sacrament is necessarily to accept the ancient Catholic view,
embodied in the Canon law, that matrimony is indissoluble. That
is, however, a mistake. Even the Canonists themselves were never
able to put forward any coherent and consistent ground for the
indissolubility of matrimony which could commend itself
rationally, while Luther and Milton and Wilhelm von Humboldt, who
maintained the religious and sacred nature of sexual
union--though they were cautious about using the term sacrament
on account of its ecclesiastical implications--so far from
believing that its sanctity involved indissolubility, argued in
the reverse sense. This point of view may be defended even from a
strictly Protestant standpoint. "I take it," Mr. G.C. Maberly
says, "that the Prayer Book definition of a sacrament, 'the
outward and visible sign of an inward and spiritual grace,' is
generally accepted. In marriage the legal and physical unions are
the outward and visible signs, while the inward and spiritual
grace is the God-given love that makes the union of heart and
soul: and it is precisely because I take this view of marriage
that I consider the legal and physical union should be dissolved
whenever the spiritual union of unselfish, divine love and
affection has ceased. It seems to me that the sacramental view of
marriage compels us to say that those who continue the legal or
physical union when the spiritual union has ceased, are--to quote
again from the Prayer Book words applied to those who take the
outward sign of another sacrament when the inward and spiritual
grace is not present--'eating and drinking their own damnation.'"

If from the point we have now reached we look back at the question of
divorce we see that, as the modern aspects of the marriage relationship
becomes more clearly realized by the community, that question will be
immensely simplified. Since marriage is not a mere contract but a fact of
conduct, and even a sacred fact, the free participation of both parties is
needed to maintain it. To introduce the idea of delinquency and punishment
into divorce, to foster mutual recrimination, to publish to the world the
secrets of the heart or the senses, is not only immoral, it is altogether
out of place. In the question as to when a marriage has ceased to be a
marriage the two parties concerned can alone be the supreme judges; the
State, if the State is called in, can but register the sentence they
pronounce, merely seeing to it that no injustice is involved in the
carrying out of that sentence.[364]

In discussing in the previous chapter the direction in which sexual
morality tends to develop with the development of civilization we came to
the conclusion that in its main lines it involved, above all, personal
responsibility. A relationship fixed among savage peoples by social custom
which none dare break, and in a higher stage of culture by formal laws
which must be observed in the letter even if broken in the spirit, becomes
gradually transferred to the sphere of individual moral responsibility.
Such a transference is necessarily meaningless, and indeed impossible,
unless the increasing stringency of the moral bond is accompanied by the
decreasing stringency of the formal bond. It is only by the process of
loosening the artificial restraints that the natural restraints can exert
their full control. That process takes place in two ways, in part on the
basis of the indifference to formal marriage which has marked the masses
of the population everywhere and doubtless stretches back to the tenth
century before the domination of ecclesiastical matrimony began, and
partly by the progressive modification of marriage laws which were made
necessary by the needs of the propertied classes anxious to secure the
State recognition of their unions. The whole process is necessarily a
gradual and indeed imperceptible process. It is impossible to fix
definitely the dates of the stages by which the Church effected the
immense revolution by which it grasped, and eventually transferred to the
State, the complete control of marriage, for that revolution was effected
without the intervention of any law. It will be equally difficult to
perceive the transference of the control of marriage from the State to
the individuals concerned, and the more difficult because, as we shall
see, although the essential and intimately personal fact of marriage is
not a proper matter for State control, there are certain aspects of
marriage which touch the interests of the community so closely that the
State is bound to insist on their registration and to take an interest in
their settlement.

The result of dissolving the formal stringency of the marriage
relationship, it is sometimes said, would be a tendency to an immoral
laxity. Those who make this statement overlook the fact that laxity tends
to reach a maximum as a result of stringency, and that where the merely
external authority of a rigid marriage law prevails, there the extreme
excesses of license most flourish. It is also undoubtedly true, and for
the same reason, that any sudden removal of restraints necessarily
involves a reaction to the opposite extreme of license; a slave is not
changed at a stroke into an autonomous freeman. Yet we have to remember
that the marriage order existed for millenniums before any attempt was
made to mould it into arbitrary shapes by human legislation. Such
legislation, we have seen, was indeed the effort of the human spirit to
affirm more emphatically the demands of its own instincts.[365] But its
final result is to choke and impede rather than to further the instincts
which inspired it. Its gradual disappearance allows the natural order free
and proper scope.

The great truth that compulsion is not really a force on the side
of virtue, but on the side of vice, had been clearly realized by
the genius of Rabelais, when he said of his ideal social state,
the Abbey of Thelema, that there was but one clause in its rule:
Fay ce que vouldras. "Because," said Rabelais (Bk. i, Ch. VII),
"men that are free, well-born, well-bred, and conversant in
honest companies, have naturally an instinct and spur that
prompts them unto virtuous actions and withdraws them from vice.
These same men, when by base subjection and constraint they are
brought under and kept down, turn aside from that noble
disposition by which they freely were inclined to virtue, to
shake off and break that bond of servitude." So that when a man
and a woman who had lived under the rule of Thelema married each
other, Rabelais tells us, their mutual love lasted undiminished
to the day of their death.

When the loss of autonomous freedom fails to lead to licentious
rebellion it incurs the opposite risk and tends to become a
flabby reliance on an external support. The artificial support of
marriage by State regulation then resembles the artificial
support of the body furnished by corset-wearing. The reasons for
and against adopting artificial support are the same in one case
as the other. Corsets really give a feeling of support; they
really furnish without trouble a fairly satisfactory appearance
of decorum; they are a real protection against various accidents.
But the price at which they furnish these advantages is serious,
and the advantages themselves only exist under unnatural
conditions. The corset cramps the form and the healthy
development of the organs; it enfeebles the voluntary muscular
system; it is incompatible with perfect grace and beauty; it
diminishes the sum of active energy. It exerts, in short, the
same kind of influence on physical responsibility as formal
marriage on moral responsibility.

It is too often forgotten, and must therefore be repeated, that
married people do not remain together because of any religious or
legal tie; that tie is merely the historical outcome of their
natural tendency to remain together, a tendency which is itself
far older than history. "Love would exist in the world to-day,
just as pure and just as enduring," says Shufeldt (_Medico-Legal
Journal_, Dec., 1897), "had man never invented 'marriage.' Truly
affined mates would have remained faithful to each other as long
as life lasted. It is only when men attempt to improve upon
nature that crime, disease, and unhappiness step in." "The
abolition of marriage in the form now practiced," wrote Godwin
more than a century ago (_Political Justice_, second edition,
1796, vol. i, p. 248), "will be attended with no evils. We are
apt to represent it to ourselves as the harbinger of brutal lust
and depravity. But it really happens in this, as in other cases,
that the positive laws which are made to restrain our vices
irritate and multiply them." And Professor Lester Ward, in
insisting on the strength of the monogamic sentiment in modern
society, truly remarks (_International Journal of Ethics_, Oct.,
1896) that the rebellion against rigid marriage bonds "is, in
reality, due to the very strengthening of the true bonds of
conjugal affection, coupled with a rational and altogether proper
determination on the part of individuals to accept, in so
important a matter, nothing less than the genuine article." "If
by a single stroke," says Professor Woods Hutchinson
(_Contemporary Review_, Sept., 1905), "all marriage ties now in
existence were struck off or declared illegal, eight-tenths of
all couples would be remarried within forty eight hours, and
seven-tenths could not be kept asunder with bayonets." An
experiment of this kind on a small scale was witnessed in 1909 in
an English village in Buckinghamshire. It was found that the
parish church had never been licensed for marriages, and that in
consequence all the people who had gone through the ceremony of
marriage in that church during the previous half century had
never been legally married. Yet, so far as could be ascertained,
not a single couple thus released from the legal compulsion of
marriage took advantage of the freedom bestowed. In the face of
such a fact it is obviously impossible to attach any moral value
to the form of marriage.

It is certainly inevitable that during a period of transition the natural
order is to some extent disturbed by the persistence, even though in a
weakened form, of external bonds which are beginning to be consciously
realized as inimical to the authoritative control of individual moral
responsibility. We can clearly trace this at the present time. A sensitive
anxiety to escape from external constraint induces an under-valuation of
the significance of personal constraint in the relationship of marriage.
Everyone is probably familiar with cases in which a couple will live
together through long years without entering the legal bond of marriage,
notwithstanding difficulties in their mutual relationship which would have
long since caused a separation or a divorce had they been legally married.
When the inherent difficulties of the marital relationship are complicated
by the difficulties due to external constraint, the development of
individual moral responsibility cuts two ways, and leads to results that
are not entirely satisfactory. This has been seen in the United States of
America and attention has often been called to it by thoughtful American
observers. It is, naturally, noted especially in women because it is in
women that the new growth of personal freedom and moral responsibility has
chiefly made itself felt. The first stirring of these new impulses,
especially when associated, as it often is, with inexperience and
ignorance, leads to impatience with the natural order, to a demand for
impossible conditions of existence, and to an inaptitude not only for the
arbitrary bondage of law but even for the wholesome and necessary bonds of
human social life. It is always a hard lesson for the young and idealistic
that in order to command Nature we must obey her; it can only be learnt
through contact with life and by the attainment of full human growth.

Dr. Felix Adler (in an address before the Society of Ethical
Culture of New York, Nov. 17, 1889) called attention to what he
regarded as the most deep-rooted cause of an undue prevalence of
divorce in America. "The false idea of individual liberty is
largely held in America," and when applied to family life it
often leads to an impatience with these duties which the
individual is either born into or has voluntarily accepted. "I am
constrained to think that the prevalence of divorce is to be
ascribed in no small degree to the influence of democratic
ideas--that is, of false democratic ideas--and our hope lies in
advancing towards a higher and truer democracy." A more recent
American writer, this time a woman, Anna A. Rogers ("Why American
Marriages Fail," _Atlantic Monthly_, Sept., 1907) speaks in the
same sense, though perhaps in too unqualified a manner. She
states that the frequency of divorce in America is due to three
causes: (1) woman's failure to realize that marriage is her work
in the world; (2) her growing individualism; (3) her lost art of
giving, replaced by a highly developed receptive faculty. The
American woman, this writer states, in discovering her own
individuality has not yet learnt how to manage it; it is still
"largely a useless, uneasy factor, vouchsafing her very little
more peace than it does those in her immediate surcharged
vicinity." Her circumstances tend to make of her "a curious
anomalous hybrid; a cross between a magnificent, rather
unmannerly boy, and a spoiled, exacting _demi-mondaine_, who
sincerely loves in this world herself alone." She has not yet
learnt that woman's supreme work in the world can only be
attained through the voluntary acceptance of the restraints of
marriage. The same writer points out that the fault is not alone
with American women, but also with American men. Their idolatry
of their women is largely responsible for that intolerance and
selfishness which causes so many divorces; "American women are,
as a whole, pampered and worshipped out of all reason." But the
men, who lend themselves to this, do not feel that they can treat
their wives with the same comradeship as the French treat their
wives, nor seek their advice with the same reliance; the American
woman is placed on an unreal pedestal. Yet another American
writer, Rafford Pyke ("Husbands and Wives," _Cosmopolitan_,
1902), points out that only a small proportion of American
marriages are really unhappy, these being chiefly among the more
cultured classes, in which the movement of expansion in women's
interests and lives is taking place; it is more often the wife
than the husband who is disappointed in marriage, and this is
largely due to her inability to merge, not necessarily
subordinate, her individuality in an equal union with his.
"Marriage to-day is becoming more and more dependent for its
success upon the adjustment of conditions that are psychical.
Whereas in former generations it was sufficient that the union
should involve physical reciprocity, in this age of ours the
union must involve a psychic reciprocity as well. And whereas,
heretofore, the community of interest was attained with ease, it
is now becoming far more difficult because of the tendency to
discourage a woman who marries from merging her separate
individuality in her husband's. Yet, unless she does this, how
can she have a complete and perfect interest in the life
together, and, for that matter, how can he have such an interest
either?"

Professor Münsterberg, the distinguished psychologist, in his
frank but appreciative study of American institutions, _The
Americans_, taking a broader outlook, points out that the
influence of women on morals in America has not been in every
respect satisfactory, in so far as it has tended to encourage
shallowness and superficiality. "The American woman who has
scarcely a shred of education," he remarks (p. 587), "looks in
vain for any subject on which she has not firm convictions
already at hand.... The arrogance of this feminine lack of
knowledge is the symptom of a profound trait in the feminine
soul, and points to dangers springing from the domination of
women in the intellectual life.... And in no other civilized land
are ethical conceptions so worm-eaten by superstitions."

We have seen that the modern tendency as regards marriage is towards its
recognition as a voluntary union entered into by two free, equal, and
morally responsible persons, and that that union is rather of the nature
of an ethical sacrament than of a contract, so that in its essence as a
physical and spiritual bond it is outside the sphere of the State's
action. It has been necessary to labor that point before we approach what
may seem to many not only a different but even a totally opposed aspect of
marriage. If the marriage union itself cannot be a matter for contract, it
naturally leads to a fact which must necessarily be a matter for implicit
or explicit contract, a matter, moreover, in which the community at large
has a real and proper interest: that is the fact of procreation.[366]

The ancient Egyptians--among whom matrimonial institutions were so elastic
and the position of woman so high--recognized a provisional and slight
marriage bond for the purpose of testing fecundity.[367] Among ourselves
the law makes no such paternal provision, leaving to young couples
themselves the responsibility of making any tests, a permission, we know,
they largely avail themselves of, usually entering the legal bonds of
marriage, however, before the birth of their child. That legal bond is a
recognition that the introduction of a new individual into the community
is not, like sexual union, a mere personal fact, but a social fact, a fact
in which the State cannot fail to be concerned. And the more we
investigate the tendency of the modern marriage movement the more we shall
realize that its attitude of freedom, of individual moral responsibility,
in the formation of sexual relationships, is compensated by an attitude of
stringency, of strict social oversight, in the matter of procreation. Two
people who form an erotic relationship are bound, when they reach the
conviction that their relationship is a real marriage, having its natural
end in procreation, to subscribe to a contract which, though it may leave
themselves personally free, must yet bind them both to their duties
towards their children.[368]

The necessity for such an undertaking is double, even apart from the fact
that it is in the highest interests of the parents themselves. It is
required in the interests of the child. It is required in the interests of
the State. A child can be bred, and well-bred, by one effective parent.
But to equip a child adequately for its entrance into life both parents
are usually needed. The State on its side--that is to say, the community
of which parents and child alike form part--is bound to know who these
persons are who have become sponsors for a new individual now introduced
into its midst. The most Individualistic State, the most Socialistic
State, are alike bound, if faithful to the interests, both biological and
economic, of their constituent members generally, to insist on the full
legal and recognized parentage of the father and mother of every child.
That is clearly demanded in the interests of the child; it is clearly
demanded also in the interests of the State.

The barrier which in Christendom has opposed itself to the natural
recognition of this fact, so injuring alike the child and the State, has
clearly been the rigidity of the marriage system, more especially as
moulded by the Canon law. The Canonists attributed a truly immense
importance to the _copula carnalis_, as they technically termed it. They
centred marriage strictly in the vagina; they were not greatly concerned
about either the presence or the absence of the child. The vagina, as we
know, has not always proved a very firm centre for the support of
marriage, and that centre is now being gradually transferred to the child.
If we turn from the Canonists to the writings of a modern like Ellen Key,
who so accurately represents much that is most characteristic and
essential in the late tendencies of marriage development, we seem to have
entered a new world, even a newly illuminated world. For "in the new
sexual morality, as in Corregio's _Notte_, the light emanates from the
child."[369]

No doubt this change is largely a matter of sentiment, of, as we sometimes
say, mere sentiment, although there is nothing so powerful in human
affairs as sentiment, and the revolution effected by Jesus, the later
revolution effected by Rousseau, were mainly revolutions in sentiment. But
the change is also a matter of the growing recognition of interests and
rights, and as such it manifests itself in law. We can scarcely doubt that
we are approaching a time when it will be generally understood that the
entrance into the world of every child, without exception, should be
preceded by the formation of a marriage contract which, while in no way
binding the father and mother to any duties, or any privileges, towards
each other, binds them both towards their child and at the same time
ensures their responsibility towards the State. It is impossible for the
State to obtain more than this, but it should be impossible for it to
demand less. A contract of such a kind "marries" the father and mother so
far as the parentage of the individual child is concerned, and in no other
respect; it is a contract which leaves entirely unaffected their past,
present, or future relations towards other persons, otherwise it would be
impossible to enforce it. In all parts of the world this elementary demand
of social morality is slowly beginning to be recognized, and as it affects
hundreds of thousands of infants[370] who are yearly branded as
"illegitimate" through no act of their own, no one can say that the
recognition has come too soon. As yet, indeed, it seems nowhere to be
complete.

Most attempts or proposals for the avoidance of illegitimate
births are concerned with the legalizing of unions of a less
binding degree than the present legal marriage. Such unions would
serve to counteract other evils. Thus an English writer, who has
devoted much study to sex questions, writes in a private letter:
"The best remedy for the licentiousness of celibate men and the
mental and physical troubles of continence in woman would be
found in a recognized honorable system of free unions and
trial-marriages, in which preventive intercourse is practiced
until the lovers were old enough to become parents, and possessed
of sufficient means to support a family. The prospect of a
loveless existence for young men and women of ardent natures is
intolerable and as terrible as the prospect of painful illness
and death. But I think the old order must change ere long."

In Teutonic countries there is a strongly marked current of
feeling in the direction of establishing legal unions of a lower
degree than marriage. They exist in Sweden, as also in Norway
where by a recent law the illegitimate child is entitled to the
same rights in relation to both parents as the legitimate child,
bearing the father's name and inheriting his property (_Die Neue
Generation_, July, 1909, p. 303). In France the well-known judge,
Magnard, so honorably distinguished for his attitude towards
cases of infanticide by young mothers, has said: "I heartily wish
that alongside the institution of marriage as it now exists we
had a free union constituted by simple declaration before a
magistrate and conferring almost the same family rights as
ordinary marriage." This wish has been widely echoed.

In China, although polygamy in the strict sense cannot properly
be said to exist, the interests of the child, the woman, and the
State are alike safeguarded by enabling a man to enter into a
kind of secondary marriage with the mother of his child. "Thanks
to this system," Paul d'Enjoy states (_La Revue_, Sept., 1905),
"which allows the husband to marry the woman he desires, without
being prevented by previous and undissolved unions, it is only
right to remark that there are no seduced and abandoned girls,
except such as no law could save from what is really innate
depravity; and that there are no illegitimate children except
those whose mothers are unhappily nearer to animals by their
senses than to human beings by their reason and dignity."

The new civil code of Japan, which is in many respects so
advanced, allows an illegitimate child to be "recognized" by
giving notice to the registrar; when a married man so recognizes
a child, it appears, the child may be adopted by the wife as her
own, though not actually rendered legitimate. This state of
things represents a transition stage; it can scarcely be said to
recognize the rights of the "recognized" child's mother. Japan,
it may be added, has adopted the principle of the automatic
legitimation by marriage of the children born to the couple
before marriage.

In Australia, where women possess a larger share than elsewhere
in making and administering the laws, some attention is beginning
to be given to the rights of illegitimate children. Thus in South
Australia, paternity may be proved before birth, and the father
(by magistrate's order) provides lodging for one month before and
after birth, as well as nurse, doctor, and clothing, furnishing
security that he will do so; after birth, at the magistrate's
decision, he pays a weekly sum for the child's maintenance. An
"illegitimate" mother may also be kept in a public institution at
the public expense for six months to enable her to become
attached to her child.

Such provisions are developed from the widely recognized right of
the unmarried woman to claim support for her child from its
father. In France, indeed, and in the legal codes which follow
the French example, it is not legally permitted to inquire into
the paternity of an illegitimate child. Such a law is, needless
to say, alike unjust to the mother, to the child, and to the
State. In Austria, the law goes to the opposite, though certainly
more reasonable, extreme, and permits even the mother who has had
several lovers to select for herself which she chooses to make
responsible for her child. The German code adopts an intermediate
course, and comes only to the aid of the unmarried mother who has
one lover. In all such cases, however, the aid given is
pecuniary only; it insures the mother no recognition or respect,
and (as Wahrmund has truly said in his _Ehe und Eherecht_) it is
still necessary to insist on "the unconditional sanctity of
motherhood, which is entitled, under whatever circumstances it
arises, to the respect and protection of society."

It must be added that, from the social point of view, it is not
the sexual union which requires legal recognition, but the child
which is the product of that union. It would, moreover, be
hopeless to attempt to legalize all sexual connection, but it is
comparatively easy to legalize all children.

There has been much discussion in the past concerning the particular form
which marriage ought to take. Many theorists have exercised their
ingenuity in inventing and preaching new and unusual marriage-arrangements
as panaceas for social ills; while others have exerted even greater energy
in denouncing all such proposals as subversive of the foundations of human
society. We may regard all such discussions, on the one side or the other,
as idle.

In the first place marriage customs are far too fundamental, far too
intimately blended with the primary substance of human and indeed animal
society, to be in the slightest degree shaken by the theories or the
practices of mere individuals, or even groups of individuals.
Monogamy--the more or less prolonged cohabitation of two individuals of
opposite sex--has been the prevailing type of sexual relationship among
the higher vertebrates and through the greater part of human history. This
is admitted even by those who believe (without any sound evidence) that
man has passed through a stage of sexual promiscuity. There have been
tendencies to variation in one direction or another, but at the lowest
stages and the highest stages, so far as can be seen, monogamy represents
the prevailing rule.

It must be said also, in the second place, that the natural prevalence of
monogamy as the normal type of sexual relationship by no means excludes
variations. Indeed it assumes them. "There is nothing precise in Nature,"
according to Diderot's saying. The line of Nature is a curve that
oscillates from side to side of the norm. Such oscillations inevitably
occur in harmony with changes in environmental conditions, and, no doubt,
with peculiarities of personal disposition. So long as no arbitrary and
merely external attempt is made to force Nature, the vital order is
harmoniously maintained. Among certain species of ducks when males are in
excess polyandric families are constituted, the two males attending their
female partner without jealousy, but when the sexes again become equal in
number the monogamic order is restored. The natural human deviations from
the monogamic order seem to be generally of this character, and largely
conditioned by the social and economic environment. The most common
variation, and that which most clearly possesses a biological foundation,
is the tendency to polygyny, which is found at all stages of culture,
even, in an unrecognized and more or less promiscuous shape, in the
highest civilization.[371] It must be remembered, however, that recognized
polygyny is not the rule even where it prevails; it is merely permissive;
there is never a sufficient excess of women to allow more than a few of
the richer and more influential persons to have more than one wife.[372]

It has further to be borne in mind that a certain elasticity of the formal
side of marriage while, on the one side, it permits variations from the
general monogamic order, where such are healthful or needed to restore a
balance in natural conditions, on the other hand restrains such variations
in so far as they are due to the disturbing influence of artificial
constraint. Much of the polygyny, and polyandry also, which prevails among
us to-day is an altogether artificial and unnatural form of polygamy.
Marriages which on a more natural basis would be dissolved cannot legally
be dissolved, and consequently the parties to them, instead of changing
their partners and so preserving the natural monogamic order, take on
other additional partners and so introduce an unnatural polygamy. There
will always be variations from the monogamic order and civilization is
certainly not hostile to sexual variation. Whether we reckon these
variations as legitimate or illegitimate, they will still take place; of
that we may be certain. The path of social wisdom seems to lie on the one
hand in making the marriage relationship flexible enough to reduce to a
minimum these deviations--not because such deviations are intrinsically
bad but because they ought not to be forced into existence--and on the
other hand in according to these deviations when they occur such a measure
of recognition as will deprive them of injurious influence and enable
justice to be done to all the parties concerned. We too often forget that
our failure to recognize such variations merely means that we accord in
such cases an illegitimate permission to perpetrate injustice. In those
parts of the world in which polygyny is recognized as a permissible
variation a man is legally held to his natural obligations towards all his